Scott, J.
This action, to remove a cloud upon plaintiff’s title to real estate, presents an unusual state of facts.
The-plaintiff on April-18, 1904, married Frederick E. Hamlin, now deceased. Shortly after .their marriage Frederick E. Hamlin negotiated the purchase of the two pieces of real property involved in the action; One piece, situated at Bellport in Suffolk county, was conveyed to plaintiff on August 16,1904, and- the other, situated in the city of Hew York, was conveyed to her on'September Y, 1904. Frederick E. Hamlin paid the consideration for both pieces of land, and it was at his instance that the deeds were made out to plaintiff. The deed to the house in the city of Hew York was-placed on record the same day that it was executed, and the deed to the property in Suffolk county was placed on record some time afterwards.
[495]*495On September 8,1904, the plaintiff executed deeds to her husband Frederick E. Hamlin, of both of these pieces of property. After his death, on November 27,. 1904, the two deeds, both unrecorded, were found in a box belonging to him, and to which he alone had access, in a safe deposit vault. With them was found a policy of . tire insurance originally issued to James O’Brien, the grantor of the New York property, on which appeared an indorsement dated September 9, 1904, reciting that the interest in the policy was vested in plaintiff “ as owner.” The two houses were used by Hr. and Mrs. Hamlin until his death, as their family residence and the expense of supporting them and making repairs and improvements were paid and borne by Mr. Hamlin.
The plaintiff’s contention is that although the deeds from herself to her husband were voluntarily executed by her, and were permitted by her to come into and remain in his possession, there never had been in a legal sense a delivery to or acceptance by him so as to vest the title in him. The case in effect turns upon the question as to what were Frederick E. Hamlin’s intentions in causing his wife to execute the déeds and intrust their custody to him, and her intention in so doing, and upon this subject a considerable amount of testimony was taken.
Of direct testimony there was little, for of course the plaintiff’s mouth was closed as to any statements made by her deceased husband except to the limited extent that the defendants permitted her to testify on that subject, or themselves offered evidence of her statéments.
There was considerable evidence, however, as to declarations made by the deceased to various persons, both before and after the purchase of the property, respecting his intention that it should be the property of his wife. Before the purchase, and during the progress of his negotiations for the purchase he frequently declared to various persons that he intended to give the properties to his wife, and that he so intended to give them as á wedding present, and after the purchase, while the deeds to himself were resting in his box, he frequently declared that the properties belonged to his wife.
There was • evidence on the part of the plaintiff that when the deeds from her to her husband were executed he told her that it [496]*496was simply to help him temporarily, in ease lie needed the money for his business, and that the properties were hers and' that' he would put the deeds in his safe deposit box and próbably they would never be recorded, and that later, while he- and she were at the Hot Springs, the deceased told her to remind him to destroy the deeds. The plaintiff’s- testimony was that she told this conversation to Herbert Hamlin, her brother-indaw, ■ after her husband’s death Herbert Hamlin’s version of her conversation on being called as a. witness, for the defendants is somewhat different. He testified that .-plaintiff -told him that it was Frederick R.-Hamlin’s intention to give her the houses. That concerning the execution of tlio deeds she had stated to her husband that he need not be afraid to leave the title to the lots in her name,-but that lie had replied and had objected to that and said “ that he did not want to feel that if he went broke in his' theatrical business ' *" * * the only property he had was. out of his name.” It appears that Frederick R. Hamlin’s business was of such a nature that while at times he made large sums of money, he was also liable, at tipies to suffer large losses.
It must, of course,, be conceded that- ordinarily the finding of.a/ complete, fully executed and apparently effectual deed of convey anee in the possession of the grantee creates a presumption of -delivery to and acceptance by him, although that'presumption is capable of being refuted.; The question after all resolves itself into one of intention which may be established by parol or circumstantial evidence. To make an effectual transfer of title to real estate by deed there must be delivery by the grantor and, what is quite .as important, acceptance by the grantee; “ there must be both a delivery and acceptance, with the- intent of making the deed an effective conveyance. * *. * -While the presumption is that'a deed was delivered and accepted at its date it is a presumption that must yield to opposing evidence ” (Ten Eyck v. Whitbeck, 156 N. Y. 341, 352; Holbrook v. Truesdell, 100 App. Div. 10), and proof tending-to show that no transfer of title was contemplated does not fall within the condemnation, of the rule prohibiting oral" evidence to vary the terms of a written instrument. (Higgins v. Ridgway, 153 N. Y. 130; Persons v. Hawkins, 41 App. Div. 171.)
" We are, therefore, at liberty in view of all the evidence in -the case to consider whether or not Frederick R. Hamlin when .he [497]*497caused liis wife to execute the deeds to himself and to intrust them to him intended thereby to vest the title in himself or, in other words, intended a delivery by her and an acceptance by himself, using these terms in their legal sense.
There are many reasons for thinking that he did not. In the first place such an intention would be at complete variance with all of his proven declarations, both before and after the transaction, as to his intention and desire that the property should be his wife’s, and no reason is suggested in the evidence or upon the briefs why, if he had intended to take title himself, he should not have done so in the first instance without going through the useless form of having the conveyance first made to his wife with an immediate conveyance by her to him.- It was said in Ten Eyck v. Whitbeck (supra) that the recording of a deed by a grantee is entitled to consideration upon the question of delivery, and in the absence of opposing evidence may justify a presumption to that effect. So in the-present case the fact that Frederick R. Hamlin omitted to place his wife’s deeds to him upon record is entitled to consideration as bearing upon his intention in procuring the deeds to be executed, as is the other circumstance that he kept along with the deeds in the box a fire insurance policy in favor of his wife in which she was specified as owner and which would have been valueless to him if the title to the property had been transferred to him. The question naturally suggests itself why, if Frederick R. Hamlin did not intend that the title to the property should vest in himself, did he procure the deeds to be executed and placed in his own custody. A possible answer may be found in his statement to his wife at the time the deeds were executed.
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Scott, J.
This action, to remove a cloud upon plaintiff’s title to real estate, presents an unusual state of facts.
The-plaintiff on April-18, 1904, married Frederick E. Hamlin, now deceased. Shortly after .their marriage Frederick E. Hamlin negotiated the purchase of the two pieces of real property involved in the action; One piece, situated at Bellport in Suffolk county, was conveyed to plaintiff on August 16,1904, and- the other, situated in the city of Hew York, was conveyed to her on'September Y, 1904. Frederick E. Hamlin paid the consideration for both pieces of land, and it was at his instance that the deeds were made out to plaintiff. The deed to the house in the city of Hew York was-placed on record the same day that it was executed, and the deed to the property in Suffolk county was placed on record some time afterwards.
[495]*495On September 8,1904, the plaintiff executed deeds to her husband Frederick E. Hamlin, of both of these pieces of property. After his death, on November 27,. 1904, the two deeds, both unrecorded, were found in a box belonging to him, and to which he alone had access, in a safe deposit vault. With them was found a policy of . tire insurance originally issued to James O’Brien, the grantor of the New York property, on which appeared an indorsement dated September 9, 1904, reciting that the interest in the policy was vested in plaintiff “ as owner.” The two houses were used by Hr. and Mrs. Hamlin until his death, as their family residence and the expense of supporting them and making repairs and improvements were paid and borne by Mr. Hamlin.
The plaintiff’s contention is that although the deeds from herself to her husband were voluntarily executed by her, and were permitted by her to come into and remain in his possession, there never had been in a legal sense a delivery to or acceptance by him so as to vest the title in him. The case in effect turns upon the question as to what were Frederick E. Hamlin’s intentions in causing his wife to execute the déeds and intrust their custody to him, and her intention in so doing, and upon this subject a considerable amount of testimony was taken.
Of direct testimony there was little, for of course the plaintiff’s mouth was closed as to any statements made by her deceased husband except to the limited extent that the defendants permitted her to testify on that subject, or themselves offered evidence of her statéments.
There was considerable evidence, however, as to declarations made by the deceased to various persons, both before and after the purchase of the property, respecting his intention that it should be the property of his wife. Before the purchase, and during the progress of his negotiations for the purchase he frequently declared to various persons that he intended to give the properties to his wife, and that he so intended to give them as á wedding present, and after the purchase, while the deeds to himself were resting in his box, he frequently declared that the properties belonged to his wife.
There was • evidence on the part of the plaintiff that when the deeds from her to her husband were executed he told her that it [496]*496was simply to help him temporarily, in ease lie needed the money for his business, and that the properties were hers and' that' he would put the deeds in his safe deposit box and próbably they would never be recorded, and that later, while he- and she were at the Hot Springs, the deceased told her to remind him to destroy the deeds. The plaintiff’s- testimony was that she told this conversation to Herbert Hamlin, her brother-indaw, ■ after her husband’s death Herbert Hamlin’s version of her conversation on being called as a. witness, for the defendants is somewhat different. He testified that .-plaintiff -told him that it was Frederick R.-Hamlin’s intention to give her the houses. That concerning the execution of tlio deeds she had stated to her husband that he need not be afraid to leave the title to the lots in her name,-but that lie had replied and had objected to that and said “ that he did not want to feel that if he went broke in his' theatrical business ' *" * * the only property he had was. out of his name.” It appears that Frederick R. Hamlin’s business was of such a nature that while at times he made large sums of money, he was also liable, at tipies to suffer large losses.
It must, of course,, be conceded that- ordinarily the finding of.a/ complete, fully executed and apparently effectual deed of convey anee in the possession of the grantee creates a presumption of -delivery to and acceptance by him, although that'presumption is capable of being refuted.; The question after all resolves itself into one of intention which may be established by parol or circumstantial evidence. To make an effectual transfer of title to real estate by deed there must be delivery by the grantor and, what is quite .as important, acceptance by the grantee; “ there must be both a delivery and acceptance, with the- intent of making the deed an effective conveyance. * *. * -While the presumption is that'a deed was delivered and accepted at its date it is a presumption that must yield to opposing evidence ” (Ten Eyck v. Whitbeck, 156 N. Y. 341, 352; Holbrook v. Truesdell, 100 App. Div. 10), and proof tending-to show that no transfer of title was contemplated does not fall within the condemnation, of the rule prohibiting oral" evidence to vary the terms of a written instrument. (Higgins v. Ridgway, 153 N. Y. 130; Persons v. Hawkins, 41 App. Div. 171.)
" We are, therefore, at liberty in view of all the evidence in -the case to consider whether or not Frederick R. Hamlin when .he [497]*497caused liis wife to execute the deeds to himself and to intrust them to him intended thereby to vest the title in himself or, in other words, intended a delivery by her and an acceptance by himself, using these terms in their legal sense.
There are many reasons for thinking that he did not. In the first place such an intention would be at complete variance with all of his proven declarations, both before and after the transaction, as to his intention and desire that the property should be his wife’s, and no reason is suggested in the evidence or upon the briefs why, if he had intended to take title himself, he should not have done so in the first instance without going through the useless form of having the conveyance first made to his wife with an immediate conveyance by her to him.- It was said in Ten Eyck v. Whitbeck (supra) that the recording of a deed by a grantee is entitled to consideration upon the question of delivery, and in the absence of opposing evidence may justify a presumption to that effect. So in the-present case the fact that Frederick R. Hamlin omitted to place his wife’s deeds to him upon record is entitled to consideration as bearing upon his intention in procuring the deeds to be executed, as is the other circumstance that he kept along with the deeds in the box a fire insurance policy in favor of his wife in which she was specified as owner and which would have been valueless to him if the title to the property had been transferred to him. The question naturally suggests itself why, if Frederick R. Hamlin did not intend that the title to the property should vest in himself, did he procure the deeds to be executed and placed in his own custody. A possible answer may be found in his statement to his wife at the time the deeds were executed.
One version is that given in behalf of the defendants to the effect that he said he did not want to feel that if he went broke in his theatrical business the only property he had was not in his name. The other version, different in form but not in substance, was that he wanted the deeds to help him temporarily in case he needed the money for his business.- As has been said, his business was precarious, subjecting him to the possibility of large losses, and it is by no means inconceivable that his purpose was to have the deeds ready so that, if the necessity arose, he might without delay invest himself [498]*498with the title to the. property for the purpose of raising money. ’ Such an inference as to his intention would entirely reconcile his repeated declarations inspecting his wi-fe?s ownership of the property, with his apparently inconsistent ,act of having,the deeds to himself executed. Upon the whole case we are satisfied that the finding of the trial court to the effect that there was no delivery-of' the-deeds •to or acceptance- of them by Frederick B. Hamlin, -and. consequently that the title-to the property never vested in him, was correct.
It remains hut to consider the question as to.the reception -of the evidence of plaintiff respecting statements made to her by her husband. Such evidence was clearly incompetent and if the question as to -its admission was properly raised it would be fatal to the judgment.,
Throughout the -trial there was manifested, great care oil -the jiart .of the court, that no evidence forbidden by section 829 of the -Code of Civil Procedure should be received, and offers of such evidence were repeatedly excluded upon objection. The plaintiff was asked concerning Some conversation with' her go executor,, the defendant Herbert Hamlin. She was proceeding to relate what she told him as to her husband’s statements. Defendants’ counsel objected to what the husband said, and the court replied, “ Ho, not what he. said, but what she said to him,” evidently referring to Herbert Hamlin. Counsel did not persist -in the objection and took no exception. The witness then testified as to what she told Herbert Hamlin that her husband had said to her. Defendants’ counsel moved to strike the evidence- out, hut no ruling was made and no exception taken. A colloquy then arose -respecting the -evidence, in the course of which the court stated lie understood the witness to have testified -to what-she told her coexécutor, to wliieh defendants’ counsel replied, “ If the record -stands that way, very -well.” Later a motion was -made to strike out all the testimony, hut it was not placed upon the ground that it contravened the terms -of section 829. It was upon the ground that -it was immaterial, irrelevant and incompetent and not within the issues. There was certainly nothing in the motion to warn the court that the evidence was objected to as forbidden by section 829 -of the Code of Civil Procedure, especially after counsel’s acquiescence in the reception of the testimony a few minutes earlier.
[499]*499We are, therefore, of the opinion that the incompetency of the evidence is not so raised as to require us to reverse the judgment because of its admission.
The judgment should be affirm'ed, with costs.
Patterson, P.J., and Lambert, J., concurred; McLaughlin. and Houghton, JJ., dissented.